One last chance

At 6:26 p.m. EST yesterday, the United States House of Representatives did the wrong thing.

Oh, The Legal Genealogist will grant that the lower house of Congress may have acted for the right reasons — wanting to avoid the uncertainty and anxiety of threats of a government shutdown.

But it still did the wrong thing.

It adopted the so-called “Bipartisan Budget Act of 2013” without amendment. Which means that, as of this moment, there are exactly 100 men and women — members of the United States Senate — standing between reason and good sense on one side and closing access to the Social Security Death Master File on the other.

The Death Master File, known to genealogists as the Social Security Death Index (SSDI), has been a political football for some time.

Somewhere along the line somebody got a bee in his bonnet and came to the conclusion — without supporting evidence — that the Big Bad Boogie Man of identity theft was access to the SSDI. It was just because the Bad Guys could access the SSDI, or so the story went, that the IRS issued multiple refund checks, all to the same address, all to people who’d already been reported as dead.

Sure it was.

But when people want to believe something — and oh do people ever want to believe that there is some easy fix to identity theft and tax fraud — there’s no sense trying to confuse them with the facts.

And so, yesterday, at 6:26 p.m., the House of Representatives voted to take a record that is now public, that the courts have ruled is available to you and to me under the Freedom of Information Act, and close off public access for three years after a person’s death. And, during those three years, the law will say, the Freedom of Information Act doesn’t apply.

The Secretary of Commerce shall not disclose to any person information contained on the Death Master File with respect to any deceased individual at any time during the 3-calendar-year period beginning on the date of the individual’s death…

Now I’ve said it before and I’ll say it again: three years isn’t an insurmountable problem for most day-to-day genealogists. Most of us are looking at people who died 30 — or 300 — years ago, not three years ago.

But there are those in the genealogical community who do need that kind of access. Our community includes forensic genealogists, heir researchers, and those researching individual genetically-inherited diseases — and for those people, loss of immediate access to this resource would be devastating.

And although the bill does call for a certification program to allow some people earlier access, it won’t help those folks in our community. It won’t be set up soon enough and the language of the bill isn’t broad enough to cover them.

So we are down to this. One last chance. One final opportunity to convince 100 men and women. Our Senators.

And we have to act today.

Today, not tomorrow.

Today, as in right now.

The Senate can take this measure up at any time and we can absolutely expect that it’ll do it early next week if it doesn’t do it today.

We need to take the time to educate ourselves on the issues involved in this fight. I listed a series of resources to that end in yesterday’s blog post.

And we need to make one last effort to convince our Senators. There are two from each state. You can find out who your Senators are at the Senate’s web site. Just use the dropdown box, choose your state, and you’ll get the contact information.

The message is simple:

• The argument that big money will be saved if access to the Death Master File (SSDI) is limited is bogus. There’s no evidence to support it.

• There is evidence to support the conclusion that serious savings could be achieved if agencies like the IRS were required to use the SSDI, rather than shutting off access to it.

• If Congress still thinks the SSDI has to be closed for a time after a person’s death, the closure shouldn’t begin until a certification program for those who need more rapid access is in place.

• And the certification program should be open to anyone who can establish a legitimate need for access, including forensic genealogists, heir researchers, and those researching individual genetically-inherited diseases.

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12 Comments

Lisa Marker on December 13, 2013 at 11:31 am

Thank you for being able to eloquently present the very sane argument in this insane issue. I wrote my letter this morning, after I found out that the House had already passed the bill. Along with all of the facts, I have a feeling that they are just targeting the wrong demographic. I would guess that the genealogy world is not the population that will be stealing identities or committing identity fraud.

Thank you for keeping us abreast of this matter Ms. Russell. I just used the links you supplied in your post to contact the Senators from Tennessee to urge them to vote against passage of the bill as amended. I access the current records of the SSDI regularly in my work as a title attorney.

It affects many individuals, David — and having to get certified is going to be a pain. But at least it looks like you CAN get certified. Our genealogists who work in forensic areas don’t even appear to be eligible.

I wrote mine. Thought this may be of interest to your readers, from an article I wrote on this issue for our quarterly in 2011.

Ironically, on the National Technical Information Service (NTIS) website, which develops the Death Master File (what we know in the form of the SSDI) for the Social Security Administration, states that the prevention of identity theft is a major reason the SSDI exists. The NTIS states,

“By methodically running financial, credit, payment and other applications against the Death Master File, the financial community, insurance companies, security firms and state and local governments are better able to identify and prevent identity fraud. The USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001), requires an effort to verify the identity of customers, including procedures to verify customer identity and maintaining records of information used to verify identity. A user may now access an online search application or maintain a raw data version of the file. The online service is updated weekly and the weekly and monthly updates are offered electronically via https, reducing handling and production time.”

If the courts have indeed ruled that the Death Masterfile should be available to everyone under the Freedom of Information Act, then if this is passed by the Senate, every genealogist who wants access should submit an FOIA request. This will clog the bureaucratic machinery. Genealogical organizations should also put their money where their mouths are and appeal any denials of access on behalf of their membership.

That won’t work because the law doesn’t just say the SSDI is closed for the three years after the person’s death; it adds it to the list of things that are expressly exempted from disclosure under FOIA. Congress has the authority to do that.

Mark, the problem with our argument is that the Perholtz case was resolved by stipulation of settlement, and no imposed upon the parties by judicial decree.

The infirmities of your argument, however, are the least of the problems.

Of greater concern, as Judy notes, is that constricting the SSDI/DMF will not resolve the identity theft problem. Unless the IRS starts seriously screening and verifying its data, the identity thieves will make do — very well — with the SSNs of living individuals. Independent of the new DMF restrictions, the identities of living individuals have become more valuable and more available over the past year on account of ObamaCare. A deceased child on a fraudulent Form 1040 is good for the amount of the dependent exemption and the child tax credit; with the whole change in the healthcare landscape, however, the misappropriated identity of a decedent can give one access to an entire course of medical treatment. There are now fraud opportunities far more lucrative than the dead baby scam. And with ObamaCare, more people will have access to personal information of more people.

So yes, the dead children (as exemplified by the late Alexis Agin) will finally have their identities shielded from the identity thieves. But the living children (as exemplified, inter alia, by Gabriel Agin) and the living adults are now in the crosshairs. That’s us!

Note to the GAO and TIGTA: Come to us in a year and tell us how the actual dollar “savings” figures stack up to the projected dollar values touted by the legislation’s proponents.

Judy, I’m going to be in the minority here. I totally agree with your logic and do not want to see my fellow colleagues that depend on this information for forensic research to do without this valuable resource.

At the same time, it would be nice if Congress actually passed a budget and we avoided another government shutdown. We really paid a price for the last one. (Which hurt the same forensic genealogists with government contracts.) With members going home soon, neither house is going to discuss this issue. They operate on a summary of the big picture and vote yea or nay without reading the bill.

So if I have a choice between the country having a budget and the Republicans and Democrats actually agreeing on something (because we have put their jobs on the line) and trying to change this one item—I’ll take the budget as is.

It’s a no win situation for those that need this information in our industry.

Ryan and Murray most likely included this little item in order to obtain ONE vote. Just like they most likely put other items in to satisfy quirky demands of every representative that would vote against it in order to obtain their vote. (On both sides of the aisle.) I’m realistic enough to know that no one is going to nitpick this bill as some Senators attempt to pass it.

When this resource is removed and identity thieves continue operate unabated, it will prove that this was a stupid provision. However, once something like this is passed, the only way it will get removed is if the powers-that-be want it gone. We couldn’t even get a seat at the table last time. I don’t see this going away.

I read your post just now and I hope I am not too late to make a difference on this issue.

I posted the following email to my Senators, Barbara Boxer and Diane Feinstein: Dear Senator Boxer/Feinstein:

Dear Senator NAME: I am very disturbed about certain provisions of the “Bipartisan Budget Act of 2013” that have been submitted to the US Senate to limit or eliminate access to the Social Security Death Index, known more formally as the Social Security Death Master File. I respectfully request that you vote against this act as currently constituted, and here’s why:

• I recognize the challenge of preventing identity theft – but closing or limiting access to the SSDI will not stop identity theft. Most identity theft happens to living individuals when large electronic databases are hacked by malicious computer geniuses hired by criminals. I have received three letters in the last several years from two credit card providers and a doctor’s office – all of whom had been hacked. I am very much alive – and I vote in your district. • The IRS has finally implemented computer software that flags suspicious tax returns. Investigations and prosecutions of suspicious filers are increasing. The National Taxpayer Advocate, Nina E. Olson, has suggested that the IRS not issue any refunds until it can compare each tax return to informational data reported to the IRS by third parties, including the SSDI. o Without access to the SSDI, the IRS’s ability to ferret out fraudulent tax forms, and save the taxpayers money, will be seriously compromised. • Forensic genealogists and genealogists researching genetically inherited disease patterns in their families have legitimate, humanitarian reasons to access the SSDI. Forensic genealogists assist the military by identifying and locating living relatives so the remains of those who died while serving can be returned for local burial; help county coroners identify the relatives of unclaimed persons; and by locating missing heirs for probate attorneys. o Please ensure that any bill dealing with the SSDI include a provision for immediate access at least for forensic genealogists. o If the Senate insists that the SSDI has to be closed for a short interval after a person’s death, that closure should not be established until first establishing a certification program for those with a legitimate need more rapid access is established first. This certification program should be open to anyone who can establish a legitimate need for immediate access, including forensic genealogistsand those researching diseases that are inheritable genetically. • Since December 2011, the largest providers of genealogical databases (like Ancestry.com) have voluntarily either omitted the social security number from their posted information, or agreed not to post information from the SSDI for several years after an individual dies. • I am a professional genealogist who traces family history primarily for Jewish clients. Jewish families who immigrated to the United States over the last 130 years moved around frequently, often from state to state. Without access to a national database like the SSDI, it would be impossible to establish the fate of individuals who lost contact with their nuclear families after a move. American Jews already face challenges in identifying their relatives who died in Europe during the Holocaust. Do not add an additional challenge for people eager to reconnect families here in the United States.

Jane, even if we don’t prevail now in the vote (which could happen tomorrow), we need to begin educating the senators so we can perhaps frame the certification program discussion down the road. Thanks for joining the effort.

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